Roger Berkowitz

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- Revised version, originally published in The Graduate Review (cont. as Critical Sense) v. 1, #1 (1994)

In his book  Justice Accused,1 Robert Cover explores how and why ante-bellum Federal judges who were opposed to slavery consistently upheld the constitutionality of the Fugitive Slave Act of 1850.2  These judges claimed that despite their strong personal convictions that slavery was immoral and wrong, they were constrained by the U.S. Constitution to declare the Act constitutional.3  As Cover convincingly demonstrates, however, the arguments for the constitutionality of the Act of 1850 were not widely perceived to be ironclad, even in 1850.4 Nevertheless, the judges, at least some of whom were sincere in their opposition to slavery, upheld the Act.

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- Reprinted in Dignity, Freedom and the Post-Apartheid Legal Order, ed. by Alfred Barnard (Jutta, 2009).

Justice Laurie Ackermann’s decision in Ferreira is a study in tonal dissonance. Ackermann’s 232 paragraph legal opinion begins slowly. It plots out the judicial history of the case; it wades through questions of jurisdiction and standing; and it frames the question of the case all without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank Holdings Ltd., a corporation that had gone bankrupt and ceased operations. Mr. Ferreira was summoned to give sworn testimony about the affairs and property of Prima Bank. He declined, asserting a right not to offer self-incriminating testimony. In doing so, Ferreira violated section 417 of the Companies Act that requires such testimony in administrative proceedings and also expressly allows that such testimony ‘may thereafter be used in evidence’ in a criminal proceeding.

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This Article explores the unacknowledged impact of the scientifc provenance of modern law. Justice, I argue, is threatened by social scientifc thinking that subordinates justice to legitimacy, efficiency, and fairness. In doing so, I contest the conventional wisdom that positive law originates not with science but with democracy. In addition, I show that the power of the asserted connection between positive law and democracy depends upon a dangerous blurring of the distinction between justice and legitimacy. Finally, I offer an alternative genealogy of positive law that shows modern law to have been transformed into a science. My hope is that by pointing to the threatened loss of justice as an ideal, my work can help to hold open the possibility that law reclaim its foundation in the art of judgment instead of the science of law.

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- Originally published in Yale J. of Law and Humanities (June 1994).

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- Expanded version, originally published in Cardozo Law Rev. v. 24 (2003).

Political and legal theorists ask the question: What should law be? In so doing, they implicitly or explicitly overlook what law is.  This preference for the normative as opposed to the ontological approach to law is rooted in the assumption that law serves social and political ends.

Indeed, in deference to its normative interests, legal scholarship has embraced a diversity of social sciences to assist in the discovery of the best laws.  For example, the marriage of law and sociology seeks social norms of fairness according to which particular laws should be understood and interpreted.  Similarly, the science of moral philosophy strives to isolate intersubjective moral norms that will guide legislation and legal interpretation.  Positivist legal science strives to determine rules of recognition for the identification of valid laws that guaranty the certainty and security promised by the rule of law.  Most recently, the sciences of both rational and behavioral economics have emerged as powerful tools, facilitating the discovery of those  laws that maximize efficiency.

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This essay begins with the observation that the American culture industry is nearly incapable of presenting state prosecutors in a positive light. Through readings of three apparent exceptions to this rule, the essay argues that prosecutors can only be heroically and positively conceived on screen when they abandon their traditional association with law and seek to do justice beyond the laws. To the extent that prosecutors can be seen as a proxy for the image of the ideal of legal justice itself, this essay argues that the imagining of prosecutorial justice in Hollywood shows that law has lost its once-assumed connection with justice.

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The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis.

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